UN rights chief says lack of progress in Sri Lanka investigations

[TamilNet, Tuesday, 16 February 2010, 03:43 GMT]Recent statement in Dublin by United Nations High Commissioner for Human Rights, Navaneetham Pillai, that national investigations in Sri Lanka "have not worked so far," and Sri Lanka's Defense Secretary Gotabhaya Rajapakse's interview to the BBC, where Mr Rajapakse said that "he would not allow any war crimes investigation in Sri Lanka," are two forceful statements with enough legal weight to satisfy the basic requirement of international law mandating "complementarity," legal sources in Washington said. International law permits International bodies to step-in to conduct investigations on war-crimes in Sri Lanka, as the opportunities given to Sri Lanka to investigate and prosecute war crimes committed by its armed forces have been exhausted, legal sources added.

United Nations High Commissioner for Human Rights, Navi Pillay

The principle of complementarity, as outlined in the preamble and 3 articles of the Rome Statute (1, 17, 19), becomes a relevant factor in litigation premised on extraterritorial or universal jurisdiction.

The principle of complementarity holds that whenever there exists a hierarchy of courts (international, regional, national) that can exercise jurisdiction over a legal issue, including core international crimes, higher courts can only investigate and prosecute when lower courts are unable or unwilling to do so genuinely.

Therefore, an international or regional court may serve as the proper venue for the adjudication of an alleged core international crime in scenarios where the relevant national court is either unwilling or unable to to investigate or prosecute.

The Rajapakse administration's policy of obstructing justice and general failure to acknowledge and genuinely investigate core international crimes the Sri Lankan Army may have committed in the last phases of Eelam IV, under the principle of complementarity, strengthens the case for litigating these alleged crimes directly at the regional or international level.

The principle of complementarity provides that a case is inadmissible before the International Criminal Court (ICC) if it is currently under investigation by a state with jurisdiction over it. The concept of complementarity, however, allows for ICC jurisdiction in situations when the state is unable or unwilling to proceed with an investigation or where the state investigation is conducted in bad faith such as when it is used to shield the person from criminal responsibility.

In this short interview by CNN, Moreno Ocampo, the ICC prosecutor, asserts that ICC has no jurisdiction over Sri Lanka, as Sri Lanka is not a signatory to the Rome Statute.

However, the Prosecutor has adopted a policy of inviting and welcoming referrals by territorial states, instead of actively applying the proprio motu powers under Article 15. Further, the gravity requirement under article 17(1)(d) has been applied in inconsistent ways by the Office of the Prosecutor (OTP). These point to the heart of on-going legal debate on the matter of complementarity, and the discretionary powers given to the ICC Prosecutor.

Responding to Ocampo, a spokesperson for the US-based pressure group, Tamils Against Genocide (TAG) said, "we believe that a strict textual interpretation of the proprio motu rule allows the OTP discretionary powers to investigate non-signatory countries especially when the violator nation satisfies the following conditions:

The State is alleged to have grossly violated international laws having committed war crimes, crimes against humanity, and acts of genocide, and

Actions of the Stata has statisfied the complementarity mandated by international law.

OTP's power is clearly borne out in the legislative history of the Rome Statute. The inadequacy of existing case law and the resulting lack of a clear precedent may be impediments to ICC agreeing to take up Sri Lanka's case and to obtain a successful prosecution thereafter, but TAG feels that Tamils have a clear case against Sri Lanka at the ICC, and towards this we are working on legal material for submission to the ICC under the Article 15."